Three important changes in English
law in the past quarter of a century have opened the doors of the English
matrimonial Courts to Muslim spouses resident in England. Prior to 1973, the
English Courts exercised divorce jurisdiction on the basis of domicile; spouses
resident but not domiciled in England could not invoke the jurisdiction of the
English Court to terminate their marriage. Until 1972 the English Courts refused
jurisdiction in regard to all ‘polygamous’ marriages, defining this term to
encompass a marriage de facto monogamous but ‘potentially polygamous’ in the
sense that according to the rites by which the marriage had been solemnized, one
of the parties was permitted to marry again during the subsistence of the
marriage. This provision most importantly barred the English matrimonial Courts
to spouses validly married according to Muslim rites in a jurisdiction where
polygamy was permitted to Muslims (for instance, Pakistan or India). At the same
time, if the parties (or one of them) were domiciled in England at the time of
the foreign Muslim marriage, it was generally assumed that the marriage would be
considered void in English law because an English domiciliary has no capacity to
enter into a ‘polygamous,’ including a ‘potentially polygamous,’ marriage.[1]

The Domicile and Matrimonial
Proceedings Act of 1973 expanded the jurisdiction of the English Courts by
permitting them to entertain divorce petitions in circumstances where one of the
spouses had been resident within the United Kingdom for a period of twelve
months prior to the presentation of the petition, and irrespective of the
domicile of the parties. The Matrimonial Proceedings (Polygamous Marriages) Act,
1972, removed the bar on matrimonial relief previously raised by the fact that
the foreign marriage was either potentially or actually polygamous.[2] And the 1983
decision of the Court of Appeal in Hussain v. Hussain[3] held that the
Muslim marriage contracted abroad by a Muslim man domiciled in England was not
void because ‘potentially polygamous.’ The Court pointed out that the Pakistani
bride, according to her personal law (Pakistani Muslim law as the law of her
domicile) was not permitted another husband during the subsistence of the
marriage, while the husband, according to his personal law (English law as the
law of his domicile) was not permitted another wife during the subsistence of
the marriage. If neither spouse were permitted to marry an additional partner,
where, the Court asked, was the ‘potential’ for polygamy.

Although after the
statutory reforms of 1972 and 1973, either of the Muslim spouses resident in
England might avail themselves of the matrimonial remedies available to them
through the English Courts, if the parties were domiciled in a country where
Muslim law would be applicable to the marriage, the husband was more likely to
choose to execute a talaq in preference to pursuing judicial proceedings—or
permitting his wife to proceed with her divorce petition. Again, changes in
English law in the past quarter of a century both restricted the husband’s
access to talaq (by making it clear that an extra-judicial event which took
place within the jurisdiction of the English Court would not effectively
dissolve the marriage in English law), and considerably liberalized the rules
for recognition of a ‘procedural’ talaq[4] effected abroad
(by permitting such a talaq to take place in a country with which one of the
spouses was connected by ties of nationality or habitual residence, rather than
merely in the country in which the spouses were domiciled).

These developments, which
were largely concessions—perhaps long over due concessions—to the multi-cultural
nature of post World War II England and the presence of a significant Muslim
minority, produced a disturbing reaction on the part of what might best be
termed the spokesmen of Muslim male interests. It will be most convenient to
examine individually the various components of the evolving
situation.

I. Divorce and Muslim Law

Extra-Judicial
Divorce by the Muslim Husband (Talaq)

One of the features of
Muslim law best known in the West concerns the facility for easy divorce which
is provided to the husband. By the simple pronouncement of a verbal formula the
husband can bring the marriage to an end; under the unreformed traditional law,
this can be accomplished instantly and irrevocably if the husband is a Sunni. If
the husband were a Hanafi (as are the overwhelming majority of South Asian
Muslims; the vast majority of Muslims in England are of South Asian extraction),
the fact that he uttered the fateful words while in a state of intoxication or
uncontrollable rage, or the fact that he did not mean them or immediately
repented having spoken them is of no legal significance—the marriage is
terminated.

However, the Pakistan
Muslim Family Laws Ordinance, promulgated by Ayub Khan’s martial law government
in 1961, (inter alia) introduced (section 7) some minimal restrictions on the
Muslim husband’s rights of easy extra-judicial divorce[5] by requiring that
any talaq pronouncement be notified to a designated local official and to the
wife, and decreeing that no talaq would ripen into an actual divorce until
ninety days after such notification had been received. During the interval, the
talaq pronouncement remains revocable (and if revoked, will not take effect as a
divorce); during this interval also the local official is enjoined to undertake
attempts at reconciliation of the spouses, although whether or not he carries
out, or attempts to carry out, this responsibility has no effect on the finality
of the talaq and the effectiveness of the divorce once the ninety days have
expired without a revocation of the pronouncement being issued by the
husband.

There
are thus four procedural requirements for effecting a divorce by talaq valid in
Pakistani law:

Pronouncement of the talaq formula;
Notification of the pronouncement to the requisite local official;
Notification of the pronouncement to the wife;
The passage of ninety days during which the husband refrains from revoking the pronouncement.

These ‘procedures,’[6] are mandatory for
the execution of an effective talaq.

While a Pakistani talaq
fulfils the statutory requirement of “judicial or other proceedings,” a ‘bare’
or ‘classical’ talaq (e.g., an Indian talaq) does not under Pakistani law,
induced the English Courts to conclude that a Pakistani talaq constituted a
divorce “obtained by means of . . . other proceedings” in the context of the
Recognition of Foreign Divorces and Legal Separations Act, 1971.[7]

Recognition
of Talaq Divorce in English Law

Prior to 1971, English law
in regard to dissolutions of marriage occurring under and according to a foreign
legal system was clear and concise: a foreign divorce would be recognized under
the common law rules as a valid divorce in English law if it were valid by the
law of the spouses’ domicile (which, at that time, meant the domicile of the
husband). Assuming such a divorce to be valid under the law of the spouses’
domicile, it appeared that a marriage could be brought to an end in English law
by an extra-judicial talaq pronounced in England.[8] The common law
rules were substantially modified by the Matrimonial Causes Act, 1973, which (i)
provided (section 16 (1)) that no procedure occurring within the United Kingdom
could be recognized as dissolving a marriage unless instituted in a Court of
law;[9] (ii) barred the
recognition of a divorce obtained other than “by means of judicial or other
proceedings” if both the spouses had been habitually resident in the U.K. for a
period of twelve months prior to the divorce (section 16 (2));[10] and (iii) ended
the wife’s domicile of dependency (section 1). Recognizing that the spouses may
have separate domiciles (the wife no longer automatically acquiring her
husband’s domicile on marriage) meant that henceforth a divorce could only be
recognized on the basis of the common law rule (foreign domicile) if it were
valid according to the law of the domicile of each spouse; recognition was
precluded if one of the spouses were domiciled in the U.K.

Meanwhile, the Recognition
of Foreign Divorces and Legal Separations Act, 1971, provided a format[11] (inspired by—but
going much further than required by—the 1970 Hague Convention on the same
subject) for recognition of divorces “obtained by means of judicial or other
proceedings” in a country with which at least one of the parties was connected
by ties of nationality, habitual residence, or domicile (including domicile as
defined by the foreign country in question). The requirements for recognition of
a foreign divorce under ‘code’ section of the 1971 Act were much more lenient[12] than those laid
down by the (revised) common law rules, which were preserved by the Act of 1971,
and modified by the Act of 1973.[13]

There are thus two distinct
sets of criteria under which a foreign divorce might be recognized in English
law. The common law rules cannot be invoked if either spouse is domiciled in
England or if the spouses have (after the Act of 1986, if one spouse has) been
habitually resident in the U.K. for twelve months prior to the divorce
proceedings. Neither of these bars automatically prevents recognition of a
foreign divorce under the legislation implementing the Hague Convention.
Extra-judicial divorces or dissolutions of marriage raise their own peculiar
evidential problems, dramatically demonstrated on two occasions when the English
Court held that an extra-judicial act or event had had the effect, under the
relevant foreign law, of terminating the marriage, when in fact the act or event
had had absolutely no effect at all on the matrimonial status of the parties
according to the law of the foreign jurisdiction.[14]

Muslim
Women and ‘Islamic Divorce’ in England

The more immediately
relevant problem raised by recognition of foreign divorces derived from the fact
that the English Court had no jurisdiction to deal with ancillary matters unless
it itself dissolved the marriage. Thus, recognizing a foreign divorce as
effectively terminating the marriage, deprived the English Court of any power to
make financial orders in favor of the discarded wife. Although this difficulty
could arise in regard to any foreign divorce (judicial or extra-judicial), it
arose predictably and cogently in regard to talaq divorces due to the fact that
Muslim law recognizes neither any concept of division of matrimonial assets nor
alimony on divorce.[15] The woman
divorced by a talaq recognized under the regime of 1971/ 1973 had little redress
unless a sizable mahr (dower) had been pledged in her favor by her bridegroom at
the time of the marriage. A major incentive for a Muslim husband in England to
seek to dissolve the marriage by talaq, rather than petitioning for divorce in
the English Courts (or allowing his wife to proceed with her divorce petition)
is the desire to avoid any financial responsibility for his divorced
wife.

The
inability of the English Court to protect the interests of the woman whose
marriage was dissolved by a foreign divorce entitled to recognition in English
law under the more liberal recognition rules, was addressed in Part III of the
Matrimonial and Family Proceedings Act, 1984. This statute empowered the English
Courts to grant financial relief to one or other spouse even in cases where the
marriage had not been dissolved by the English Court.[16]

‘Blackmail’
of Muslim Wives in England

By no means was it a
coincidence that just when it appeared clear that legislation would be passed
empowering the English Courts to grant ancillary relief in cases where the
marriage had been dissolved by a foreign divorce entitled to recognition under
English law, spokesmen for male Muslim interests (in many circumstances this
phrase is preferable to the term ‘fundamentalists’) began putting it about that
under Muslim law a woman is not entitled to a divorce without her husband’s
consent, and that no Muslim marriage can be dissolved in a ‘religious’ sense
unless the husband pronounces a talaq.

Although this proposition
is untrue as regards Muslim law, note how closely the alleged position of the
Muslim woman so postulated approximates the position of the woman in orthodox
Jewish law. Curiously, it appears that the fallacious proposition concerning
Muslim law was readily and uncritically accepted by English legal circles simply
because of this irrelevant similarity.[17] I first
encountered this fallacious proposition during the course of a question period
following my lectures on Muslim marriage and divorce in English law at a
training session for solicitors organized by the Greater Manchester Legal
Services Committee in November 1983. Having convinced my audience that Muslim
law did not in all circumstances require the husband’s consent to the
dissolution of the marriage and did permit the Muslim wife to obtain a judicial
divorce in the face of her husband’s opposition, I made many (unsuccessful)
attempts to locate the source of the propaganda that seemed to be being put
about, particularly in the Bolton area.

The following summer, two
well-meaning Members of Parliament (Leo Abse and Peter Thurnham) proposed, in
quite dramatic speeches, an amendment17 to the Matrimonial and Family
Proceedings Bill which, the proposers believed, would protect Muslim women who
were being ‘blackmailed’ by their
husbands and forced to pay heavily for their spouses’ consent to a ‘religious’
divorce.[18]

Under Muslim law a man may
have many wives, but a woman only one husband. Thus religious divorce is
essential for a Muslim woman who wishes to remarry according to her faith, but a
Muslim man can be content with civil divorce alone, as he does not have
religious inhibitions about remarrying as often as he wishes. Thousands of
brides face that predicament. They are vulnerable to blackmail by their
husbands, who will agree to a religious divorce only for a
consideration.

Cases have been brought to my
attention in Bolton, of which my constituency is a part. In one case, the
parties had gained British nationality but had been separated for five years
with a decree absolute. The ex-husband would not, however, grant a religious
divorce. He demanded £5,000 and the return of the wedding jewellery as an
inducement. In the second case, the husband and wife were married in India.
After an unhappy relationship in Great Britain the husband sent his wife’s
passport to the Home Office in an attempt to get her removed, as she did not
have British nationality. He eventually agreed to a religious divorce, but only
if he did not have to pay maintenance and if she returned the wedding jewellery
to him.

In the
third case, both sides had British nationality, and the matter was settled only
after violent persuasion by the wife’s family. . . . In the case of Mrs. Patel,
her relatives fulfilled the husband’s demands by paying him £4,000 and returning
the marriage jewellery to obtain a religious divorce. In the fifth case, the
wife was not a British citizen and her relatives paid money to obtain a
religious divorce after the husband threatened to arrange a deportation.[19] Fortunately, the proposed amendment
was withdrawn, the Solicitor General promising to look into the matter.
Unfortunately, the damage was done. The statements in Parliament had only served
to give publicity to a grossly erroneous view of Muslim law and to place the
interests of Muslim women in the United Kingdom at even greater risk.[20]

Judicial Divorce and Muslim
Law

The main
distinction between the rights of the Muslim spouses in obtaining a
non-consensual divorce is that while the husband can effect a divorce easily
without his wife’s consent by pronouncement of talaq; the wife whose husband
will not agree to a divorce (or who will agree only on terms she is unwilling to
accept) has to go to Court. All schools of Muslim law recognize that the wife
has a right to approach the Court for a judicial dissolution of her marriage.
Such a judicial divorce is as final, and as much a ‘religious divorce,’ as is an
extra judicial divorce effected with the husband’s consent and approval. There
is, however, considerable divergence among the schools of Islamic law concerning
the precise grounds which would entitle a Muslim wife to judicial dissolution of
her marriage. The classical Hanafi school is by far the most restrictive in this
regard. For precisely this reason, comprehensive reform of the classical Hanafi
law has been accomplished in several countries since the initial reform
introduced in the Ottoman Empire in 1915. Since the majority of Muslims in the
U.K. trace their ancestry to South Asia, the obvious statute to examine to
refute the claims of the spokesmen of the interests of Muslim males is the
Dissolution of Muslim Marriages Act, 1939.[21]

The statement of objects and
reasons issued with the Bill which subsequently became the Dissolution of Muslim
Marriages, Act, 1939, is set out below and explains the concerns behind this
Act, which has now been on the statutes books of the territory presently
comprising the states of Pakistan, Bangladesh, and India for more than half a
century. There is no proviso in the Hanafi code of Muslim law enabling a married
Muslim woman to obtain a decree from the Court dissolving her marriage in case
the husband neglects to maintain her, makes her life miserable by deserting or
persistently maltreating her, or absconds leaving her unprovided for, and under
certain other circumstances. The absence of such provision has entailed
unspeakable misery to innumerable Muslim women in British India.

The Hanafi jurists, however, have
clearly laid down that in cases in which the application of Hanafi law causes
hardship, it is permissible to apply the provisions of the Maliki, Shafi'i or
Hanbali law. Acting on this principle the ulama [i.e., religious scholars and
functionaries] have issued fatwas [i.e., opinions concerning the religious law]
to the effect that in cases enumerated in clause 3, Part A of this Bill
[contained in section 2 of the resultant Act], a married woman may obtain a
decree dissolving her marriage. A lucid exposition of this principle can be
found in the book called al-Hilat al-Najizah published by Maulana Ashraf Ali
Saheb who has made an exhaustive study of the provisions of Maliki law which,
under the circumstances prevailing in India, may be applied to such cases. This
has been approved by a large number of ulama who have put their seals of
approval on the book.

As the
Courts are sure to hesitate to apply the Maliki law to the case of a
[non-Maliki] woman, legislation recognising and enforcing the above mentioned
principle is called for in order to relieve the sufferings of countless Muslim
women.[22] The background to this statute,
enacted during the British period by rulers who had generally refrained from
interference in the personal laws of its subjects is extremely
interesting.

In the
unique circumstances of British-India a few desperate Hanafi women had
discovered that a way out of intolerable matrimonial situations existed if they
were willing to apostatize, even temporarily, from Islam. In Islamic law,
apostasy on the part of a Muslim spouse dissolves a Muslim marriage; a female
apostate would, however, be incarcerated until she repented of her error and
then remarried on a minimal mahr (dower) to the man to whom she had been married
at the time of her apostasy. Apostasy was not a crime in British-India; indeed,
the Christian missionaries were actively seeking converts and the Evangelical
lobby was strong. It is to the latter that must be credited the Caste
Disabilities Removal Act, 1850, (otherwise known as the Freedom of Religion
Act), which declared that the apostate lost none of his pre-existing rights
(particularly rights of property and inheritance) by virtue of leaving or being
expelled from caste or religious communion. Perhaps somewhat illogically, the
British-Indian Courts when confronted with the question decided that, although
much of the law of apostasy was not applicable in British-India, that part of
Muslim law which decreed the dissolution of the apostate’s marriage was in
force. A Muslim woman could thus easily shed the husband she despised by
converting to Christianity. She could, and often did, then reconvert to Islam as
a single woman.

Although
the number of women who resorted to such desperate measures was small both
numerically and statistically, the cases that did occur were widely publicized
in the Urdu press and aroused considerable concern in the Muslim community.
Petitions and memorials were submitted calling upon the government to overrule
the Courts which were issuing declarations recognizing the dissolution of her
marriage occasioned by the apostasy of the Muslim wife. The government was
reluctant to take any action unless some alternative remedy were made available
to the women who were using apostasy as a means of obtaining matrimonial relief
otherwise unavailable to them. Meanwhile, many distinguished ulema issued fatwas
proposing that Hanafi women should be allowed access to judicial divorce on
grounds recognized by other Sunni schools, particularly Maliki.

The Act of 1939 was essentially a
compromise: it entitled Muslim women to petition for divorce on the grounds set
out below (which had been adopted from Maliki law), while at the same time
laying down that apostasy on the part of a married Muslim woman would no longer
have the effect of dissolving her marriage (section 4).

Section 2 of the statute sets out
the grounds on which a South Asian Muslim wife may petition the Court for
divorce:

2. A
woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds,
namely: (i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or
other guardian before she attained the age of fifteen years, repudiated the
marriage before attaining the age of eighteen years; Provided that the marriage
has not been consummated;[23]

(viii) that the husband treats her with cruelty, that is to say:
(a) habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or (b)
associates with women of evil repute or leads an infamous life, or (c) attempts
to force her to lead an immoral life, or (d) disposes of her property or
prevents her exercising her legal rights over it, or (e) obstructs her in the
observance of her religious profession or practice, or (f) if he has more wives
than one, does not treat her equitably in accordance with the injunctions of the
Qumran;

(ix) on any other ground which is recognized as valid for the
dissolution of marriages under Muslim law.

In Pakistan
and Bangladesh the Dissolution of Muslim Marriages Act was amended by the Muslim
Family Laws Ordinance, 1961, and a further ground on which a wife may seek a
judicial divorce enumerated: “that the husband has taken an additional wife in
contravention of the provisions of the Muslim Family Laws Ordinance, 1961,”
i.e., without the requisite prior permission of the Arbitration Council. It is
perhaps worth noting that the Act of 1939 is of general application, and applies
to Muslim women in Pakistan, Bangladesh, and India, whether Hanafi or Shafi'i,
Sunni or Shia. It should also be noted that the fact that a woman has recourse
to the Dissolution of Muslim Marriages Act to secure judicial divorce does not
affect her financial claims against her husband: section 5 of the Act
specifically provides—“Nothing contained in this Act shall affect any right
which a married woman may have under Muslim law to her dower [mahr] or any part
thereof on the dissolution of the marriage.” She would, of course, also be
entitled to maintenance from her husband during the period of iddah. It should
also be pointed out, and with some emphasis, that there is nothing to be found
in the 1939 Act to the effect that the husband’s consent is required for the
divorce to become final, or imposing the requirement that the husband pronounce
a talaq before the wife is free to remarry according to Muslim law and Muslim
rites—nothing in fact in any way comparable to the terms proposed to be
introduced into English law by the Abse-Thurnham amendment.

The grounds available under the
Dissolution of Muslim Marriages Act are not really very different from those
available under the English legislation. Most divorce petitions in a contested
action rely on either five years’ separation or unreasonable behavior to
establish irretrievable breakdown of the marriage necessary to obtain a divorce
under the Matrimonial Causes Act, 1973. It could be argued that the former
ground is less lenient than those available under the Dissolution of Muslim
Marriages Act, which entitle a wife to divorce on grounds of either failure to
maintain for two years or failure to perform marital obligations for three
years. The import of the English expression “has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent” is much
the same as the comparable clause in the Dissolution of Muslim Marriages Act,
“makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment.”

A divorce granted by the Courts of
India, Pakistan, or Bangladesh under the Dissolution of Muslim Marriages Act
does not require the husband’s consent or approval; the Muslim wife is most
emphatically not in the position of the Jewish agunah.[24] There is absolutely no justification
at all for subjecting Muslim women in England to a more fundamentalist, or less
enlightened, interpretation of Muslim law than that to which their sisters in
the subcontinent are subject, or for denying Muslim women in England rights
which their sisters in the subcontinent have enjoyed for more than half a
century.[25]

It is tragic that the well-meaning
MPs were not better informed than they were, for had they been, the statements
made in the House of Commons, instead of merely broadcasting an erroneous
proposition concerning Muslim law and publicizing the success that Muslim men
were having ‘blackmailing’ their ignorant and uninformed wives, could have been
used to expose the error and publicize the correct state of affairs, thus
achieving to some extent the goal sought by the ill-advised MPs of granting some
protection to ill-used women.

Within a year or so of the
discussion in Parliament concerning the Abse-Thurnham amendment, I was contacted
by a solicitor representing a Muslim woman suing for divorce in the English
Court. The letter indicated that both the solicitor and her client were of the
opinion that the marriage would not be dissolved ‘religiously’ unless the
husband pronounced a talaq; made it clear that the husband was attempting to
extract a heavy price for his talaq; and asked for my advice. I pointed out that
the client clearly had grounds for divorce under the South Asian Dissolution of
Muslim Marriages Act; that the grounds available to her under the English
legislation were quite comparable to those available under the Dissolution of
Muslim Marriages Act; that were the marriage dissolved in South Asia under the
Dissolution of Muslim Marriages Act, the husband’s consent would not be
necessary and the wife would not lose her rights to mahr; and that I saw no
reason why a Muslim woman in England should be denied rights available to her
sisters in Pakistan. I enclosed a copy of my article on Muslim women and
judicial divorce,[26] written in response to the
Abse-Thurnham debate. The solicitor replied that my letter and enclosure had
been “a real eye-opener” to both her and her client. The moral is obviously that
women are only vulnerable to the kind of intimidation and blackmail to which
Muslim women in England are being subjected to the extent that they are ignorant
of their rights under Muslim law. If they have available to them information
with which they can reply to their husband’s pronouncements concerning what
Muslim law decrees or demands, they are able to hold their own ground and to
refuse to be intimidated or blackmailed.

II. The Islamic Sharia Council
and ‘Islamic’ Divorce

Why an ‘Islamic’
divorce?

I have
recently been advising a young Muslim woman who had gone through a procedure
involving the Islamic Sharia Council in London and purportedly resulting in an
‘Islamic divorce.’ The first question which obviously arises is why, having
obtained a decree absolute from the English Court before she approached the
Sharia Council, the woman considered such a course necessary.

She explained to me that she
thought such an ‘Islamic’ divorce was necessary in two respects. (i) She wanted
a divorce that would be recognized in Pakistani law. Although the woman is a
British national, was domiciled in England prior to her marriage, and resumed
her English domicile after the parties separated some years prior to the
divorce, her (ex) husband is a Pakistani national and domiciled in that country.
She and her family have close friends in Pakistan and she wanted to be free to
visit that country without harassment and worry. And (ii) she wanted a divorce
that would be recognized in certain countries of the Middle East (e.g., Bahrain)
where she is likely to travel because she has relatives living there. The fear
was that in the absence of an ‘Islamic’ divorce, in addition to the decree
absolute, her ex-husband might follow her to, or encounter her in, Pakistan or
Bahrain, and there claim his conjugal rights and enforce her wifely obedience on
the ground that the matrimonial bond still subsisted.

It is important to realize that in
the modern world Islamic law, as law, does not exist as some disembodied entity
floating in the stratosphere, over-reaching national boundaries and superseding
national law. In the modern world, Islamic law exists only within the context of
a nation state; and within the boundaries of any particular state it is only
enforced and enforceable to the extent that, and subject to the reforms and
modifications that, the nation-state decrees.

In regard to Pakistan, all the
woman needed to do was to send a copy of the English decree (with a covering
letter indicating that she was giving notice of the divorce as required by
section 8 of the Muslim Family Laws Ordinance) to the local official empowered
to receive notifications of divorces under the Ordinance, with a copy of the
covering letter to her ex-husband. Section 7 of the Ordinance, which
specifically deals with divorces effected by the husband’s unilateral
pronouncement of talaq, has been discussed above. Section 8 of the Ordinance
applies the same procedural requirements (mutatis mutandis) to other forms of
divorce,[27] including divorce by mutual consent
(the extra-judicial khul; see below). The wording of section 8 of the Muslim
Family Laws Ordinance clearly would encompass a judicial divorce decreed on the
petition of the wife.

(1)
Nothing in this Act shall be deemed to affect any of the provisions of the
Muslim Family laws Ordinance, 1961, or the rules framed there under; and the
provisions of sections 7, 8, 9, and 10 of the said Ordinance shall be applicable
to any decree for the dissolution of marriage solemnized under the Muslim Law,
maintenance or dower, by a Family Court.

(2) Where a Family Court passes a
decree for the dissolution of a marriage solemnized under Muslim Law,[28] the Court shall send by registered
post, within seven days of passing such a decree, a certified copy of the same
to the appropriate Chairman [i.e., a local government official] referred to in
section 7 of the Muslim Family Laws Ordinance, 1961, and upon receipt of such
copy, the Chairman shall proceed as if he had received an intimidation of Talaq
required to be given under the said Ordinance.

(3) Notwithstanding anything to
the contrary contained in any other law, a decree for dissolution of a marriage
solemnized under Muslim Law shall—(a) not be effective until the expiration of
ninety days from the day on which a copy thereof has been sent under subsection
(2) to the Chairman; and (b) be of no effect if within the period specified in
clause (a) a reconciliation has been effected between the parties in accordance
with the provisions of the Muslim Family Laws Ordinance, 1961. Thus a judicial
decree of divorce obtained by a Muslim woman in Pakistan is, in effect, a decree
nisi, and becomes a decree absolute ninety days after notice of the decree has
been delivered to the requisite local official, unless the parties become
reconciled during this period. The only way the husband can prevent the decree
from becoming final is by persuading his wife to a reconciliation; he has no
power of veto and cannot impose ‘conditions’ or require his wife to ‘purchase’
his acquiescence to the decree.

The Muslim Family Laws Ordinance
states that its provisions apply to “all Muslim citizens of Pakistan, wherever
they may be;” it thus applies to the woman’s ex-husband (a Pakistani national).
Notice of a divorce under section 8 of the Ordinance may be given by either
spouse;[29] in the case of a judicial divorce
obtained by the wife, it would primarily be her responsibility to ensure that
notice was appropriately given.[30] There are no grounds for contending
that a non-Pakistani woman who had been married to a Pakistani national and
whose marriage had been dissolved by judicial proceedings outside of Pakistan
could not give notice under section 8; and no grounds for contending that such
notice (failing reconciliation of the parties within the statutory ninety days),
would not lead to effective registration of the divorce in Pakistan.[31]

As far as Bahrain or any other
state wherein Muslim law is applicable in matters of personal status to
nationals and domiciliaries of that state, a foreign Muslim husband would not be
permitted to invoke the domestic law to override a divorce obtained by his
foreign wife in a foreign country. The rules of private international law would
surely be held to govern the question of the matrimonial status of two
foreigners who were neither nationals of or domiciled in (e.g.) Bahrain, whose
marriage had not taken place in Bahrain, and who had been divorced in
England.

The
matter would be determined by reference to the country or countries of domicile
or nationality of the individuals involved. The woman is domiciled in England
and a national of the United Kingdom; according to the law of her nationality
and domicile, she is divorced. The ex-husband is a national of and domiciled in
Pakistan; if the divorce had been notified under section 8 of the Muslim Family
Laws Ordinance, by the law of his nationality and domicile, he is
divorced.

The Position of the Sharia Council

The woman approached the Sharia
Council in London in August 1992 (by which time she had already obtained a
decree absolute), requesting that this body arrange an ‘Islamic’ divorce for
her.

The
Sharia Council is a self-constituted body, founded in 1982[32] and claiming to have branches in
London, Birmingham, Manchester, Bradford, and Glasgow. It has, of course, no
legal status in England; it has no legal status under Pakistani, Bangladeshi, or
Indian law (the vast majority of British Muslims are of South Asian descent).
The Constitution of the Council sets forth among its objects, inter alia, the
following:

To
advance the Islamic Religion in particular by… Establishing a bench to operate
as a court of Islamic Sharia and make decisions on matters of Muslim family law
referred to it.

To
educate the public generally in the field of Muslim family law and
to foster and disseminate information in that
field.

Literature put out by the Sharia Council claims that
ninety-five percent of all the queries referred to them concern “matrimonial
problems faced by Muslims in this country,”[33] and the majority of these “come from
women who are seeking a divorce from their husbands;” “[i]t is usually
Muslim women who are seeking an Islamic divorce from their husbands who turn to
us.” “Even a number of cases are referred to us through the solicitors who were
able to obtain civil divorces for their client but they had to turn to us to
obtain an Islamic divorce.”

The matter is not merely that the
Sharia Council does not recognize the ‘civil divorce;’ the premise appears to be
that a couple may be simultaneously married to each other under two sets of
legal regimes, and that each marriage must be individually dissolved. As the
Muslims normally conduct their marriages both Islamically (known as Nikah
ceremony which is accomplished through an Imam at any Mosque or Islamic Centre),
and by registering with the civil authorities,[34] this Council deals only with the
Islamic Nikah. It has nothing to do with the civil marriage which is dissolved
by the British Courts and not by us.

If the marriage ceremonies took
place in the order in which they are mentioned in this extract, it might be
possible to argue that from the perspective of Muslim law, it was the nikah
ceremony which was relevant and the civil ceremony was totally superfluous.
However, the ceremonies do not and cannot take place in that order, because the
nikah (if it were to occur first) would almost certainly be in violation of the
Marriage Acts—not because it was a Muslim ceremony but because it would almost
certainly have taken place in an ‘unregistered building.’[35] It is because the venue of the nikah
is an unregistered building where a marriage ceremony cannot be legally
performed and because the act of purporting to solemnize a marriage in an
unregistered building is a criminal offense, that the civil ceremony precedes
the nikah; the nikah then becomes merely a ceremony of religious celebration and
blessing, legally without significance in either English or Muslim law as far as
the status of the parties is concerned: a man can no more marry a woman to whom
he is already married in Muslim law than he can in English law.

However, the civil ceremony, which
routinely precedes the nikah ceremony, is not irrelevant in Muslim law. The
legal requirements for solemnization of a marriage according to Muslim law
consist merely of offer and acceptance of the contract of marriage at the same
meeting and in the presence of witnesses. These requirements are fully satisfied
by the civil marriage ceremony.

This very important point was
underscored by the 1967 decision of the Pakistan Supreme Court in Jatoi v.
Jatoi.[36] The question here was what law of
divorce would govern the dissolution in Pakistan of a civil marriage solemnized
in an English registry office between a Pakistani Muslim man and a Spanish
Christian woman. Since marriage and divorced in Pakistan are governed by
religious-based communal laws, a choice had to be made between the (Christian)
Divorce Act, 1869, and Muslim law.

The Supreme Court held that the
solemnization of the marriage under the U.K. Marriage Act, involving as it did
formal consent to the marriage on behalf of each party at the same meeting in
the presence of witnesses, fully conformed to the legal requirements for
solemnization of a marriage under Muslim law. The marriage having been
“assimilated to the position of a Muslim marriage,” the majority went on to hold
that the marriage could be and had been dissolved by the husband’s pronouncement
of talaq. Since the registry office ceremony constitutes a valid solemnization
of the marriage in Muslim law, the subsequent nikah ceremony, rather than
producing a second matrimonial tie totally separate and distinct from that
created by the civil ceremony, is irrelevant in Muslim law as far as the status
of the parties is concerned (note again that in Muslim law, no less than in
English law, one cannot marry someone to whom one is already
married).

The
Muslim nikah is undoubtedly of social and cultural significance; it is of legal
significance primarily in regard to the specification of the wife’s mahr
(dower). (The fact that the parties are already legally man and wife at the time
of the nikah ceremony is of no significance in the context of
mahr: the amount of dower can be set or modified at any time after the
marriage.)

The
Islamic Sharia Council in the present case set about arranging a divorce by khul
—an extra-judicial divorce agreed with the mutual consent of the parties. A
necessary prerequisite for a khul—or any other form of divorce—is that the
parties are at the time actually married to each other. This prerequisite fails
in the present case; thus reliance on the khul, or upon any alleged terms of the
khul agreement, likewise fails. A concomitant of a divorce by khul is that the
woman ‘purchases’ her freedom by making concessions in favor of her husband in
order to secure his consent to the divorce.[37] Usually the Muslim wife surrenders
her right to the dower (mahr) pledged by the husband and payable on dissolution
of the marriage by death or divorce.

However, as observed by Leo Abse,
M.P., in his speech to the House of Commons, children are sometimes made the
currency of the barter: According to orthodox Jewish or Islamic law,[38] in order to remarry, the divorced
parties must be in possession of a religious divorce—a gett as it is called
within the orthodox Jewish religion, a talaq for the committed Moslem. The
obtaining of such religious decrees requires an initiative from the
husband…

Unfortunately, one partner—usually the husband—can brutally
manipulate the passionate wish of the other party to be free after a civil
divorce to remarry according to the religious law…[39] Therefore the protection that our
civil law provides for maintenance and the custody of children can be subverted
by a ruthless partner. The partner—usually the husband—blackmails the wife. The
price for taking the necessary initiative [for the obtaining of a ‘religious’
divorce] is an agreed settlement and arrangement relating to children. It might
be a settlement which, if the issues were adjudicated upon openly in court,
would according to the principles which this House had laid down in our civil
law, be far different from that to which the hapless wife has been compelled to
submit.[40]

The literature produced by the
Sharia Council states that a divorce decreed by the English Court will only be
recognized ‘Islamically’ if the husband is the petitioner or if the husband
consents to the divorce in writing. In any other case the wife who wishes to be
divorced ‘Islamically’ must apply for an ‘Islamic divorce’ through the Sharia
Council. An application for divorce by the wife is known as Khula, a condition
of which is that the wife must return to the husband any mahr (dower) or
jewellery she received from him, if he so demands it.

The procedure for the granting of
an ‘Islamic’ divorce to a woman applicant as set out in the Council’s literature
may be summarized as follows. Upon receipt of the application, the Council will
attempt to correspond with the husband (or, as will most commonly be the case,
ex-husband) in order to ascertain his response to his wife’s (or ex-wife’s)
application. If no reply is received, a second letter is sent; and, if there is
still no response, a third. If a reply is received and if the husband (or
ex-husband) has imposed any conditions upon the granting of an ‘Islamic’ divorce
to his wife (or ex-wife), she is required to comply with them “provided that
these conditions are reasonable.”

Apparently the Council is the
judge of the reasonableness or otherwise of the pre-conditions. What is
particularly interesting is that the Shariah Council apparently claims
jurisdiction to grant a khul to the wife if the husband fails to reply to their
communications, or in certain circumstances if the husband refuses his
cooperation or consent—i.e., claims the right to impose a divorce by khul on the
husband in ex parte proceedings and/or without his consent, although the ‘price’
of the khul is the woman’s renouncement of claims for mahr, repayment of any
mahr already paid, and return of any jewellery etc. presented to her by her
husband.

The first
part of this proposition reflects the Maliki view of khul, assuming that the
Council is functioning in the role of the ‘arbiters’ supposedly appointed by the
spouses. (The Hanafi view is that the arbiters can only attempt to reconcile the
spouses and have no authority to dissolve the marriage unless the husband has
specifically empowered them to pronounce talaq on his behalf.)

The second part of the
proposition, however, departs from Maliki law to the disadvantage of the woman,
for the Maliki arbiters would not automatically impose reparations upon the
woman, and certainly would not automatically deprive her of her entire mahr.
Having made a determination that the marriage should be dissolved, the Maliki
arbiters would attempt to allocate blame for the discord and may award the wife
all, some, or none of her mahr.

Particularly since women who
approach the Sharia Council for a divorce have already obtained a divorce decree
from the English Court, a procedure which requires that they prove grounds which
are very comparable to those available to Muslim women in South Asia under the
Dissolution of Muslim Marriages Act, the rather heavy handed attitude toward
Muslim women urgently needs to be reconsidered. The other problem, demonstrated
by the case I have recently been involved in, is that the Sharia Council has no
effective sanctions which can be invoked to ensure that the (ex) husband abides
by his agreement and fulfils his responsibilities and undertakings. The khul in
this case was granted on the (ex) wife’s refund of her mahr and her commitment
to allow her ex-husband access to the child of the marriage in accordance with
prior arrangements made through the Sharia Council. The (ex) husband was also to
return the jewellery given to the (ex) wife by her parents and other relatives.
The (ex) wife refunded her mahr, but the husband did not return the wife’s
jewellery. And the Council was equally powerless to hold the (ex) husband to
orderly arrangements concerning access to the
child.

However,
there is a powerful sanction available for use against the wife—the threat that
without an ‘Islamic’ divorce, she is not free ever to marry again according to
Muslim law. While remarriage may be the very last thing on the mind of a woman
in the process of extricating herself from an unhappy and traumatic matrimonial
situation, the fact remains that she may some years hence wish to consider
remarriage. By that time she may well have lost all contact with her ex-husband
and have no idea where he is or how to get in touch with him. If she believes
(or is induced to believe) that her first marriage had not been effectively
dissolved, she would obviously be in a difficult situation. Better, it might
seem, to sever the bond ‘Islamically’ as well as civilly, at once, through the
Sharia Council. The granting of an ‘Islamic divorce.’ states the Council’s
publication, produces “[a] great sigh of relief for the wife who feels really
she is Islamically free to start a new life.”

Concluding
remarks

The
immediate need is for moderate and educated Muslims to interest themselves in
the question of Muslim law in a non-Muslim environment. It is surely
unacceptable that Muslim women in a country like England should be forced, by
ignorance and social pressure, to subject themselves to an interpretation of
Islamic law that is harsher than that to which women in South Asia[41] are subjected. The matter is too
urgent to be left to self-appointed committees of ulema.

A matter to be kept prominently in
mind is that, as a leading Muslim scholar in India has written, “The true
Islamic law in fact stood for what is now known as the ‘breakdown’ theory of
divorce.”[42] More than a quarter of a century
earlier, a distinguished Muslim jurist, Chief Justice Tyabji of Sind, explained
the Dissolution of Muslim Marriages Act in the following terms: From the
earliest times Muslim wives have been held to be entitled to a dissolution when
it was clearly shown that the parties could not live ‘within the limits of
Allah,’ when: instead of the marriage being a reality, a suspension of the marriage had in fact occurred, or when the
continuance of the marriage involved injury to the wife… The grounds stated in
section 2 of Act 8 of 1939 in sub-clauses (1) to (iv) are based on the principle
that a suspension of the marriage had occurred which justified dissolution, and
in sub-clauses (v) to (viii) on the principle that continuance of the marriage
in those cases would be injurious to the wife.[43] In this case
the learned Judge granted the petitioning wife a divorce on the ground that the
husband had failed to maintain her for the statutory period of two years,
although during this period the wife was living apart from her husband without
legal ground (i.e., was herself in desertion and un-entitled to claim
maintenance from her husband unless she rejoined him in the matrimonial home) on
the basis that such separate living and failure of the parties to reconcile
their differences demonstrated the total breakdown of the marriage. Marriage in
Islam not being a sacrament, the Judge found no merit in preserving a marriage
which had broken down and equally no desecration in dissolving a marriage which
had failed.

What the
Muslim woman petitioning for divorce in the English Court must prove is that the
marriage has “broken down irretrievably.” And she must establish this breakdown
by proving one of the following facts:

(i) adultery coupled with the further circumstances that she finds it impossible to live with the respondent;

(ii) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(iii) desertion for two years;

(iv) separation for two years when both spouses agree to a divorce; or

(v) separation for five years.

This is
perhaps a more limited list than that available to the Muslim wife in South Asia
under the Dissolution of Muslim Marriages Act, although the entries under
section 2 (viii) would constitute the kind of behavior referred to by the
shorthand expression ‘unreasonable behavior’ in the context of the English
statute.

The
immediate point is to emphasize how closely analogous are the grounds upon which
a Muslim woman might obtain a divorce from the English Court and those upon
which her sister may obtain a divorce from the Indian or Pakistan or Bangladeshi
Court. A marriage that has broken down, has broken down irrespective of
geography. Meanwhile, individual Muslim women who possess the strength of
personal character and religious faith[44] to take their own individual stands
may push the community in more liberal and humane directions—just as individual
South Asian Muslim women who went to the extent of apostatizing (usually
temporarily) from Islam in order to shed a husband they could not rid themselves
of by less drastic means deserve credit for the passage of the Dissolution of
Muslim Marriage Act of 1939.

Acknowledgement: The above paper
first appeared in the Journal of Muslim Minority Affairs, Vol 17, No. 1, 1997,
pp. 97-115 and is reproduced with permission herewith.

[1] Note that before the changes under
discussion, spouses domiciled in England who had been married in England (in a registry office or in a Muslim ceremony in one of the few mosques registered as places where marriages can be solemnized) or in monogamous rites abroad (e.g., under the Indian Special Marriage Act, 1954) could approach the English Courts for matrimonial relief.

[3] (1983) Family 26. See Lucy
Carroll. “Definition of a ‘Potentially Polygamous’ Marriage in English Law: A
Dramatic Decision from the Court of Appeal (Hussain v. Hussain),” Islamic and
Comparative Law Quarterly, 4(1984): 61-71.

[4] The distinction between
foreign divorces “obtained by means of judicial or other proceedings” and
foreign divorces obtained without the necessity of any ‘proceedings’ is
important in English law. The Pakistani talaq has been held to fall in the
former category, while the ‘bare’ or ‘classical’ talaq (such as the Indian
talaq) has been held to fall in the latter category.

[5] The Ordinance also introduced
some restrictions on polygamy; required registration of Muslim marriages; raised
the marriage age for girls from fourteen to sixteen years; provided an
expeditious alternative to proceedings in the magistrate’s court for the wife
who sought maintenance from her husband; and protected the rights of succession
of the ‘orphaned’ grandchild.

[6] Or, more accurately, the
actions covered by the first three entries in the list; it is difficult to
characterize the waiting period of ninety days as a procedure.

[8] See Qureshi v. Qureshi, (1971)
1 All ER 325. In view of the provisions of section 16(1) of the Domicile and
Matrimonial Proceedings Act, 1973, this decision does not apply to
extra-judicial divorces effected after 1 January 1974.

[9] This provision was
specifically intended to reverse by statute the decision in Qureshi v. Qureshi.
See now section 44(2) of the Family Law Act, 1986.

[10] Now see section 46(2)(c) of
the Family Law Act, 1986, which raises the bar to recognition if one spouse
(rather than both spouses) were habitually resident in the U.K. for a year prior
to the institution of the divorce proceedings.

[11] Sections 2 to 5 of the 1971
Act; see now section 46(1) of the Family Law Act, 1986.

[12] E.g., recognition was not
automatically barred if one (or indeed, both) spouses were domiciled in England,
or if both had been habitually resident there for a year prior to the divorce.
To constitute a foreign divorce, of course, the talaq had to be executed abroad;
no extra-judicial dissolution of marriage may take place within the jurisdiction
of the English Court.

[13] Section 6 of the 1971 statute;
the 1973 statute (section 2) substituted a revised section 6 in the earlier Act.
See now section 46(2) of the Family Law Act, 1986.

[14] (1)
Viswalingam v. Viswalingam; the case is reported in full (High Court and Court
of Appeal) in Malayan Law Journal, 1980:10. See Lucy Carroll, “A Question of
Fact: Ascertainment of Asian Law by the English Court. A Critique of Viswalingam
v. Viswalingam,” Malayan Law Review, 22(1980): 34-65.

[15] But note surah II ayat
214:—“For divorced women maintenance [or provision] should be provided on a
reasonable scale. This is a duty on the righteous.” (Yusuf Ali, trans.) The
Shafi'is take this verse seriously; other Sunni schools adopt an interpretation
which confers no protection on the woman and imposes no responsibilities on the
man. Note, however, the recent dramatic decision of the Dhaka High Court in
Muhammad Hefzur Rahman v. Shamsun Nahar Begum, 47 (1995) Dhaka Law Reports 54.
See Lucy Carroll, “Divorced Muslim Women in India: Shah Bano, the Muslim Women
Act, and the Significance of the Bangladesh Decision,” in Women Living Under
Muslim Law, Talaq-i-Tafwid: The Muslim Woman’s Contractual Access to Divorce. An
Information Kit, forthcoming.

[16] It needs to be noted, however,
that this statute did nothing whatsoever to deal with the major evidential
problem which foreign extra-judicial divorces present to the English Courts.
This problem, as so vividly demonstrated in Viswalingam, concerns the lack of
competent and informed ‘expert’ evidence on foreign legal systems and the
consequent difficulties the Court faces in attempting to ascertain whether the
alleged action or event or happening actually brought the marriage to an end
under the relevant foreign law. Before granting an order for financial relief
under the 1984 statute, the English Court will still have to reach a
determination as to whether or not there has been a dissolution of the marriage
by means of a ‘foreign divorce’ valid in the relevant foreign jurisdiction and
entitled to recognition under English law.

[17] According to the individual
claiming credit for suggesting the amendment (the then lecturer in Muslim law at
Cambridge University and subsequently dean of the faculty of law at East Anglia
University), the proposed amendment was modeled on a New York State statute
applicable to New York Jews. (David Pearl, Cambridge Law Journal, 1984, pp.
249-250.) This is, of course, totally irrelevant to the question of whether it
should be part of English law applicable to Muslims in England. Indeed, the
Muslim law of divorce and the Jewish law of divorce are so different that any
proposition which assumes the two systems are analogous is prima facie open to
serious question. E.g., the only ground which Jewish law recognizes for
dissolution of marriage, and the only ground on which a gett can be procured, is
the mutual agreement of the spouses. While Muslim law recognizes divorce by
mutual consent (khul), it also recognizes divorce at the instance of either
spouse in the face of the opposition and resistance of the other
spouse.

[18] The proposed
amendment read as follows (Hansard 13 June 1984, col. 926): 9A.--(1) Where a
petition for divorce or nullity of marriage has been presented to the court,
either party to the marriage may apply to the court at any time before decree
absolute opposing the grant of the decree absolute on the ground that there
exists a barrier to the religious remarriage of the applicant which is within
the power of the other party to remove.

(2) The Court shall not entertain an application under subsection (1) hereof unless the
applicant satisfies the court of the existence of such a barrier by means of a
written declaration by the religious authority which authorised or sanctioned
the marriage being dissolved by the court, or which authorised or sanctioned a
religious ceremony of marriage between the same parties or on proof that such
authority no longer exists, by a religious authority recognised by both parties
to be competent.

(3) If the
court is satisfied as to the existence of such a barrier then subject to the
provisions of subsection (4) hereof the court shall refuse to permit the decree
to be made absolute until it is satisfied by means of a written declaration by
the authority referred to in subsection (2) hereof that the said barrier has
been removed or that the parties have taken all such steps within their power to
remove the said barrier or until the said application is withdrawn by the
applicant.

(4)
Notwithstanding the provisions of subsection (3) hereof the court may order that
the decree may be made absolute if there are exceptional circumstances making it
desirable for the decree to be made absolute without delay.

Even assuming that
the husband’s action in securing a ‘religious divorce’ were necessary in order
for the requirements of Muslim law to be satisfied, I entirely fail to see how
the proposed clause would solve the problem it purportedly attempted to address.
In the five examples proffered by Mr. Thurnham, M.P. in his speech in the House
of Commons (see extract quoted in text), it was apparently the respondent
husband who was purporting to refuse the ‘religious divorce.’ Unless he is
domiciled in England and anxious to remarry, delaying the decree absolute will
not affect him adversely and may well benefit him (e.g., as long as the marriage
is not dissolved, he will not become liable for payment of the deferred
dower).

[20] See Lucy Carroll, “Muslim
Women and Judicial Divorce: An Apparently Misunderstood Aspect of Muslim Law,”
Islamic and Comparative Law Quarterly, 5(1985): 226-245. This article was based
on a long statement which I submitted to the Solicitor General, the Lord
Chancellor, and the Law Commission immediately after the discussion in
Parliament on the Abse-Thurnham amendment.

[21] It is
extremely difficult to comprehend why this statute—so much more relevant to the
situation than a New York State statute applicable to New York Jews; see fn. 17
above—was not called to the attention of those advising the women so brutally
exploited in the cases referred to by Peter Thurnham, M.P., in the House of
Commons, or to those supporting the suggested amendment.

[22] Gazette of India, 1936, Part
V, p. 154; as quoted and cited by Tahir Mahmood, Muslim Personal Law: The Role
of the State in the Subcontinent. Nagpur, India: All India Reporter, 1983 (2nd edn.), pp. 47-48.

[23] See Lucy Carroll, “Muslim
Family Law in South Asia: The Right to Avoid an Arranged Marriage Contracted
During Minority,” Journal of the Indian Law Institute, 23 (1981): 149-180.

[24] A Jewish woman who has
obtained a judicial divorce from the civil Court exercising matrimonial
jurisdiction in the matter of divorce, but who has been denied a gett by her
husband and thus retains the status of ‘married woman’ in orthodox Jewish law.

[27] “8. Dissolution of marriage otherwise than by
talaq.—Where the right to divorce has been duly delegated to the wife
[talaq-i-tafwid] and she wishes to exercise that right, or where any of the
parties to a marriage wishes to dissolve the marriage otherwise than by talaq,
the provisions of section 7 shall, mutatis mutandis and so far as applicable
apply.” (Emphasis added.)

[28] Solemnization of a marriage
“under Muslim law” need not be concluded by or in the presence of a religious
functionary or representative; it need not involve any religious rites or
ceremonies. The legal requirements for solemnization of a marriage according to
Muslim law consist merely of offer and acceptance of the contract of marriage at
the same meeting and in the presence of witnesses. See further below.

[29] The husband pronouncing a
talaq must himself give notice under section 7. The corollary is that his
failure to give notice conclusively evidences the fact that he retracted or
revoked the pronouncement. The forms of divorce covered by section 8 normally
occur at the initiative of the wife or through the agreement of the spouses;
there is no requirement that notification of the divorce effected “otherwise
than by talaq” be given by the husband. (A judicial divorce obtained by a Muslim
husband in a jurisdiction, or under circumstances where extrajudicial divorce by
talaq would not be recognized would also come under section 8; theoretically
notice could be given by the wife no less than by the husband, once the decree
were final.)

[30] This is
particularly the case in the province of the Punjab (where the parties to the
present case resided together during the marriage; and where the ex-husband is
apparently still domiciled), because in 1971 the provincial government deleted
subsections (2) and (3) and part of subsection (1) of section 21 of the Family
Courts Act. As applicable in the Punjab, section 21 therefore reads
simply:—“Nothing in this Act shall be deemed to affect any of the previsions of
the Muslim Family Laws Ordinance, 1961, or the rules made thereunder.

Interpreting the
effect of the provincial amendments, the Lahore High Court in 1975 (Muhammad
Ishaque v. Ch. Ahsan Ahmad, PLD 1975 Lahore 1118) concluded:—“The Family Courts
would thus continue to follow the practice of sending a copy of the decree to
the Chairman concerned but at the same time it is also necessary for the wife in
whose favour the decree is passed, to independently inform the Chairman about
the decree as also to send a notice thereof to the husband in a formal
manner.

[31] I am fortified in making this
statement by conversations and communications with members of the superior
judiciary in Pakistan (including an individual at the time a judge of the
Supreme Court) and with senior advocates in Pakistan in the period immediately
after the Abse-Thurnham amendment had been proposed in the House of Commons and
with specific reference to that amendment.

[32] At a time when it was clear
that legislation would soon be enacted (as it was two years later) which would
make it impossible for a Muslim husband to absolve himself of any financial
responsibility for the wife who had filed for divorce in the English Court by
hastily effecting a talaq abroad, thereby depriving the English Court of
jurisdiction to dissolve the marriage (because, assuming the talaq were entitled
to recognition in English law, the parties were no longer husband and wife) and,
consequently, of jurisdiction to order a financial settlement in favor of the
wife (because, prior to the legislation of 1984, this jurisdiction only arose if
the English Court itself dissolved the marriage). See now Part III of the
Matrimonial and Family Proceedings Act, 1984.

[33] The Council claims to have
dealt with more than 950 matters in the period (apparently) 1982-1991; a more
recent (but undated) document puts the number at more than
1150.

[35] English law requires that
marriages be solemnized in a registered building. The main complication this
poses for members of the Muslim and Hindu communities is that a building can
only be registered for the solemnization of marriages if it is used exclusively
for religious services. Many mosques and temples are used for purposes (e.g.,
accommodation of the religious leader and his family) other than a venue where
religious services are conducted.

[37] The khul is
usually concluded by the husband’s pronouncement of talaq, although in Hanafi
law such a pronouncement is not strictly required. In essence, the wife is
‘buying’ her husband’s pronouncement of talaq by agreeing to the ‘price’ (in
monetary or other terms) which he demands. The bargain necessarily fails if the
alleged husband has no authority to pronounce talaq in reference to the woman in
question—which, of course, he does not if he is no longer married to her.
According to some Muslim jurists, the bargain cannot be enforced against the
woman who, although she had grounds for judicial divorce, agreed to a divorce by
khul and payment by her of compensation out of ignorance, as a result of
pressure, or to preserve her modesty and her family’s honor (by refraining from
airing private matters in a public forum). That the woman in the present case
had grounds for judicial divorce is proved by the fact that she had, even at the
time of her approach to the Shariah Council, a decree absolute in her
hands.

[38] Note again the assumption that
Jewish law and Muslim law are analogous and the Muslim woman whose husband has
not pronounced a talaq is in the same position as the Jewish woman whose husband
refuses her a gett.

[39] In orthodox
Jewish law, the only recognized form of divorce is the consensual gett; the
husband has to give, and the wife has to accept, the gett. In the absence of a
gett, an orthodox Jewish woman cannot remarry.

The Muslim woman, it
must be stressed, is not in a position analogous to the Jewish agunah. While
Muslim law recognizes divorce by mutual consent (the khul), it also recognizes
unilateral divorce by the husband (talaq) or by the wife (faksh). Of course, the
woman is disadvantageously placed in that while the husband can execute his
unilateral talaq extra-judicially, she has to claim her right of unilateral
dissolution through the Courts.

[44] The woman I most recently
advised asserted with considerable feeling, after more than two years of
attempting to work matters out through the good offices of the Sharia Council,
“If this is Islam, then I am not a Muslim! But I know that it is not Islam; I
refuse to accept that it is Islam.